FAMILY COURT OF AUSTRALIA
| SIEGER & DEPARTMENT OF COMMUNITIES AND JUSTICE | [2020] FamCAFC 172 |
| FAMILY LAW – APPEAL – CHILD ABDUCTION – Where the primary judge ordered the mother to return the subject child to France – Where some of the grounds were abandoned prior to the commencement of the appeal – Application of regulation 16(3) – Where the grounds of appeal contending that the primary judge made multiple errors are misconceived – Where the primary judge did not dismiss allegations made by the appellant, but assessed the quality of the evidence concerning the allegations – Where the primary judge considered evidence and found that it did not amount to an intolerable situation for the child to return to France – Where certain grounds of appeal are prosecuted on a false premise – Where there is no mistake of fact – Where findings were open to the primary judge – Material error of law. FAMILY LAW – APPLICATIONS IN AN APPEAL – Adduce further evidence – Where the respondent Central Authority did not seek to adduce evidence in the appeal, but the evidence was available for the mother to adduce in the appeal if so inclined – Where much of the documentary evidence the mother sought to rely on fails to satisfy the admissibility criteria in CDJ v VAJ (1998) 197 CLR 172 – Leave granted to allow the appellant to adduce certain further evidence in the appeal. FAMILY LAW – APPEAL – RE-EXERCISE – Where the mother fails to establish there is a grave risk that the child’s return to France would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation – Orders made for the child’s prompt return to France were properly made – Appeal dismissed – No order as to costs. |
| Evidence Act 1995 (Cth) s 79 Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3) |
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- AGLC
- Sieger & Department of Communities and Justice [2020] FamCAFC 172
- Case
- [2020] FamCAFC 172
- Decision Date
CaseChat Overview and Summary
The court found that the grounds of appeal that claimed the primary judge made multiple errors were misconceived. The court clarified that the primary judge did not dismiss the allegations made by the appellant, but rather assessed the quality of the evidence presented. The court considered the evidence and concluded that it did not demonstrate an intolerable situation for the child to return to France. Some grounds of appeal were based on false premises and there was no mistake of fact. The findings of the primary judge were open to him and did not constitute a material error of law. Furthermore, the court ruled that leave should be granted to the appellant to adduce certain further evidence in the appeal, as the respondent Central Authority did not seek to adduce evidence, but the evidence was available for the mother to adduce if so inclined. However, much of the documentary evidence the mother sought to rely on failed to satisfy the admissibility criteria.
The court dismissed the appeal, finding that the mother had not established a grave risk that the child's return to France would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Therefore, the orders made for the child's prompt return to France were properly made. The appeal was dismissed, and no order as to costs was made.
Orders
Orders of the court
1.
Pursuant to s 93A(2) of the Family Law Act 1975 (Cth), leave is granted to the appellant to adduce as further evidence in the appeal:
(a) Annexures A, C and L to the affidavit of Ms C filed on 4 June 2020;
(b) Annexures C, D, E, F, G, P, T, U, V, Y and CC to the affidavit of the appellant filed on 22 June 2020; and
(c) An email sent by the respondent to the appellant on 6 July 2020 at 5.51 pm (comprising part of Annexure C to the affidavit of the appellant affirmed on 7 July 2020).
2.
The appeal is dismissed.
3.
No order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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